"We are under a Constitution, but the Constitution is what the Court says it is." These famous words of future Chief Justice Charles Evans Hughes have become a cliche for judicial supremacy–the idea that the Supreme Court is the ultimate, exclusive interpreter of the Constitution, having the final word on all matters pertaining to its meaning. And almost everyone now believes that judicial supremacy is based on Marbury v. Madison, decided by the Court in 1803. Marbury's contemporary influence has been graphically demonstrated in recent hearings on Supreme Court nominees, each of whom has been urged to recognize Marbury's status as a "super-duper" precedent for modern judicial supremacy. While it is true that Marbury provides a basis for judicial review–the Court's power to invalidate laws in a limited range of cases–it provides no support whatever for judicial supremacy.

The Marbury case arose in 1801 when William Marbury and three others who had been appointed justices of the peace in the District of Columbia by John Adams, the outgoing president, failed to receive their commissions on the eve of Thomas Jefferson's inauguration. The new administration refused delivery of the commissions. The four would-be judges sued for a writ of mandamus (a judicial order directing a government official to perform a duty assigned by law) in the Supreme Court to force Secretary of State James Madison to produce them. Political infighting developed over these and other eleventh-hour Federalist judicial appointments in the months after Jefferson assumed office. Among other things, this infighting led to congressional suspension of the Court's 1802 term, causing Marbury's case not to be tried until February 1803.

Before initiating the suit, at least three of the plaintiffs applied to the secretary of state and the secretary of the Senate for information regarding the commissions. None of the State Department witnesses examined at trial questioned the existence or the validity of the commissions. Attorney General Levi Lincoln, who had been acting secretary of state when Marbury first applied to the department, declined to answer questions about "what had been done with the commissions" because he felt that he "ought not to be compelled to answer any thing which might tend to criminate himself." The reason for the attorney general's worry was that the department's refusal to produce the commissions arguably violated an act of Congress that required the secretary of state to record and produce copies of all civil commissions upon payment of a dime.

Failing in their application to the State Department, at least three of the plaintiffs sought aid from the Senate. On January 31, 1803, the Senate considered a motion to direct the secretary of the Senate to give Marbury and the others a copy of the record of their confirmations in March 1801. After a lengthy debate, the motion was defeated by a vote of 15 to 13.

In its Marbury opinion, the Court (per Chief Justice John Marshall) ruled that Section 13 of the Judiciary Act of 1789, which authorized the Court to issue writs of mandamus in original (trial) jurisdiction to any "persons holding office under the authority of the United States" impermissibly enlarged the Court's jurisdiction beyond the terms of Article III of the Constitution, which restricts the Court's trial jurisdiction to cases involving ambassadors, public ministers, consuls, or states. This meant that, although Marbury had a legal right to his commission that was violated by Madison's failure to perform a ministerial duty, the Court could not provide the requested relief because the congressional extension of the Court's jurisdiction was unconstitutional.

In the final pages of his Marbury opinion, Chief Justice Marshall argued that a legislative act in conflict with the Constitution is void, and then carefully restricted the Court's power to invalidate such acts to instances in which the Court is forced to ignore either the Constitution or the statute in order to decide a particular case. The only time this situation can arise is when the constitutional and statutory provisions involved are addressed to the Court itself, as in Marbury. In other words, under Marbury's reasoning, the Court is not entitled to "reach out" and invalidate a legislative act simply because the Court doesn't like it, or even because the Court believes that some other agency of government has done something unconstitutional.

Thus, Marbury-style judicial review is very limited in scope. It is restricted to cases in which Congress has unconstitutionally meddled with the Court's functions. This is surely why the case was largely ignored by courts and legal commentators as a precedent for judicial review until the late 19th century. The Court itself didn't notice that Marbury had anything to do with judicial review until 1887, and even then it misread the case as authorizing judicial review of state law–which Marbury had nothing to do with. It was not until 1895 that the Court first cited Marbury as a precedent for judicial review of national law, despite having invalidated some 20 congressional acts by that time. Stop and think for a moment about what this means: The case that is used as the leading precedent for modern judicial supremacy was not even regarded as an instance of judicial review until 92 years after it was decided!

All told, of the 88 citations of Marbury by justices of the Supreme Court between 1803 and 1957, only ten refer to the judicial power to invalidate laws, and all ten advance highly restrictive notions of that power, confining it to a narrow range of cases. Nowhere can we find even a suggestion that the Court is the ultimate or exclusive arbiter of all constitutional questions. If Marbury really authorized judicial supremacy, why wouldn't someone on the Court have said so during its first century and a half?

It was in 1958 that everything changed. Over the next 48 years, there were 137 separate citations of Marbury, a number far eclipsing the total of the previous 154 years. During this period, Marbury was employed 67 times to support judicial review, 21 times to justify sweeping assertions of judicial power, and at least ten times to support the idea that the Court is the "final" or "ultimate" interpreter of the Constitution, with power to issue binding proclamations to any other agency or department of government respecting any constitutional issue–including the constitutional powers of those other departments. In the earliest of these decisions, the Little Rock school-desegregation case of 1958, the Court went so far as to suggest that its constitutional decisions were on par with the Constitution itself, claiming Marbury as its authority.

In sum, the Court's own history shows that judicial supremacy originated neither in Marbury nor in the Constitution nor in the Marshall era. It was established by the Warren Court and developed subsequently by the Burger and Rehnquist Courts. The post-1958 Marbury myth has been used to enlarge the power of the federal judiciary beyond the role provided by the Founders in the original Constitution.

The story of how this myth was created is an interesting one.

The work began in the 1870s, when a group of influential lawyers representing business interests began shopping for a good precedent for judicial supremacy. The reason they needed a better precedent was that the true original precedent for judicial supremacy was also the Supreme Court's most embarrassing decision–the Dred Scott opinion, which allowed the extension of slavery into the American territories in the 1850s and arguably led to the Civil War.

This group of lawyers, in league with the captains of industry, opposed government regulation of economic activity. Since the state legislatures and Congress were passing regulations designed to mitigate the worst effects of the Industrial Revolution, the lawyers and their clients sought to employ the federal courts in an effort to counter the regulations. The problem was that the courts had never exercised such power, and the constitutional basis for it was doubtful at best. So the only way to get the job done was to find a precedent for judicial supremacy. But Marbury was too tame and Dred Scott was too notorious. The only thing left was to reinvent Marbury, reinterpreting its language to make it seem like an exercise in judicial supremacy.

These legal and economic elites were also believers in an ideology called Social Darwinism. They saw economic life in much the same way that Charles Darwin and his followers saw biological life–as an intense struggle for survival in which only the "fittest" deserve to survive and reproduce. Since economic regulation was usually in the interest of protecting those who could not protect themselves in this struggle, Social Darwinists believed that such laws were counterproductive in retarding economic progress, restricting the freedom of the "more fit" and advancing the interests of those "less fit" people who constituted a "drag" on society. The Social Darwinists were ultimately successful in pressing their views on the courts, and these views held sway in the American legal community and the courts for about half a century.

Meanwhile, the opponents of the Social Darwinists, the "legal progressives" of the time, took the inaccurate history of the capitalist lawyers to heart even while opposing their social ideology. Most importantly, they accepted the falsified history of Marbury, and even went so far as to lay the blame for the dark side of the Gilded Age on John Marshall, the Supreme Court, and the Founding Fathers. Indeed, a prominent group of progressive historians falsified much of the history of the founding era, in order to make it appear that the U.S. Constitution itself had been an effort of greedy capitalists to protect their property from the masses. The political goal of the progressives was to save capitalism from itself by infusing a little socialism into the system. Ultimately, they accomplished this goal at least in part by inventing the welfare state.

As for the courts, after the 1930s and the Roosevelt Court-packing scheme, they began to move away from Social Darwinism and their earlier anti-regulatory posture, adopting instead the ideology of Progressivism–an open-ended social ideology whose main value is "change" (never mind to what) presided over by an ever-expanding administrative state. Since the arch-enemy of Progress is Tradition, it is not surprising that the courts have spent the last half-century employing judicial supremacy to undercut traditional morality.

Why does all this matter? First, during the past half-century, the Court has rendered dozens of politically charged decisions with dubious legal and historical backing. Most of these decisions would be inconceivable without the enlargement of judicial power that the Marbury myth supports. Second, and more important, the separation of powers has been unbalanced by judicial supremacy. Throughout the first century and a half of our national existence, constitutional interpretation was performed continuously by all three branches of the federal government–by Congress and the president as much as by the Court.

Third, and most important, American democracy itself has been compromised. In 1992, impatient with the frequent protests over abortion outside the Supreme Court building, the Court called for an end to the national debate on the issue. Ironically, this debate had been sparked by the Court's own 1973 decision in Roe v. Wade, one of those decisions that are inconceivable without the Marbury myth, as is every other exercise of judicial supremacy. Each of these exercises removes an important issue from the democratic process, thereby denying the people–as a people–the power and responsibility for deciding it. In an incredible fit of judicial hubris that carries judicial supremacy to the limit and turns democracy on its head, the Court declared in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) that the belief of the American people in themselves as a people under law "is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals." Perhaps Hughes was prophetic, after all, when he remarked that the Constitution is "what the Court says it is." But don't blame that on John Marshall.

I agree with some of Robert Lowry Clinton’s points in “The Marbury Myth” and disagree with others. For instance, I agree that neither Marbury nor the Constitution supports “judicial supremacy” over the other branches when it comes to constitutional interpretation. At the same time, I respectfully suggest that Clinton defines the appropriate role of courts too narrowly and also improperly equates any judicial role more expansive than he advocates with “judicial supremacy.”

In my view, each department of government (including the judicial department) may interpret the Constitution as it sees fit, without referring to views of other branches, so long as that department is operating within the sphere of authority the Constitution assigns it.

Under this approach, each branch is “supreme” within its own sphere, and no branch can control the constitutional interpretation of the other branches operating within their respective spheres. This approach, known as “Departmentalism,” finds support in the text and structure of the Constitution, the words of James Madison, and the words and actions of Abraham Lincoln. There are several examples of judicial review perfectly consistent with Departmentalism that Clinton would apparently—and incorrectly in my view—equate with “judicial supremacy.”

Finally, Clinton overstates the role that “Social Darwinism” played in Supreme Court decisions protecting economic liberty. After summarizing Clinton’s argument, complete with some quotes from his essay, I will then offer my reaction.

Marbury v. Clinton

While lionized today, Marbury was rarely cited for the proposition that Courts could invalidate legislative acts. Indeed, the article says, the Supreme Court did not cite Marbury for this proposition until the late 19th century, first in 1887 vis-à-vis a state law (apparently Clinton is referring to Mugler v. Kansas, where the Court cited Marbury but then affirmed the Kansas statute under review) and then in 1895 (in Pollock v. Farmer’s Loan and Trust Company, which struck down the income tax).

Marbury did not hold that the Supreme Court is the sole expositor of constitutional meaning. In particular, the Marbury Court simply declined to exercise jurisdiction over a case because the statute purporting to confer that jurisdiction exceeded the authority that Article III of the Constitution grants to Congress to create and define the Supreme Court’s appellate jurisdiction. Thus, Marbury was a defensive decision, protecting the Court from unlawful incursions by other branches, thereby denying the Court power that Congress tried to foist upon it. Marbury did not, Clinton says, purport to reach beyond the Court and interfere with Congress’s substantive legislative choices, for instance. As Clinton puts it:

[Marbury] carefully restricted the Court’s power to invalidate such acts to instances in which the Court is forced to ignore either the Constitution or the statute in order to decide a particular case. The only time this situation can arise is when the constitutional and statutory provisions involved are addressed to the Court itself, as in Marbury. In other words, under Marbury’s reasoning, the Court is not entitled to “reach out” and invalidate a legislative act simply because the Court doesn’t like it, or even because the Court believes that some other agency of government has done something unconstitutional. Thus, Marbury-style judicial review is very limited in scope. It is restricted to cases in which Congress has unconstitutionally meddled with the Court’s functions.

During the last quarter of the 19th century, Clinton says, lawyers for business interests invoked Marbury to justify (novel) judicial review of state legislation interfering with economic liberties, judicial review that exemplified judicial supremacy.

Since the state legislatures and Congress were passing regulations designed to mitigate the worst effects of the Industrial Revolution, the lawyers and their clients sought to employ the federal courts in an effort to counter the regulations. The problem was that the courts had never exercised such power, and the constitutional basis for it was doubtful at best.

Courts ultimately agreed that the Constitution protects certain economic liberties from unjustified invasion by states and the national government. I should note that exemplars of such protection include Lochner v. New York (1905), which invalidated a state maximum hour law. The Court also exercised the same authority vis-à-vis Congress, invalidating a minimum wage that Congress had imposed on employers and employees in the District of Columbia. According to Clinton, these anti-regulation lawyers and judges were “Social Darwinists” who believed that law should encourage economic survival of the fittest. The Supreme Court repudiated the Lochner era’s protection for economic liberty in 1937.

Still, Clinton argues that the Warren Court (1954–69), continued to embrace judicial supremacy but in furtherance of different substantive values. Moreover, in 1958, Clinton says, the Court invoked Marbury for the proposition that judicial interpretations of the Constitution are themselves, like the Constitution, the supreme law of the land and thus by their own force binding on other actors who must treat the Supreme Court’s interpretation of the Constitution as equivalent to the Constitution itself. (Clinton is apparently referring to Cooper v. Aaron, which properly enforced Brown v. Board of Education’s requirement that admission decisions at state-run high schools be made irrespective of race, ordering the governor of Arkansas to refrain from interfering with a school board’s efforts to comply with Brown, to which the board had been a party.)

Moreover, in the 1992 Planned Parenthood v. Casey decision, Clinton points out, the Court, reaffirming Roe v. Wade, asserted that Americans’ belief in the rule of law “is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals.” Clinton might have added Casey’s statement that the Court should adhere to Roe in part to reward those citizens who disagreed with Roe, “when viewed outside of constitutional terms” but “who nevertheless struggled to accept it, because they respect the rule of law.” Both statements from Casey seem to rest on the assumption that the Court’s constitutional views bind individual citizens whose disagreement must thereby be “outside constitutional terms.”

Finally, it should be noted that Clinton claims that decisions such as Roe, and various unnamed Warren Court excesses, would not have been possible without what he calls “judicial supremacy.”

Judicial Review before Marbury

I agree with Clinton’s assertion that Marbury was rarely cited until late in the 19th century. Still, the paucity of citations of Marbury during the 19th century should not obscure the deeply rooted status of judicial review.

Numerous participants in the Constitutional Convention assumed that the Constitution would empower federal courts to strike down unconstitutional state and federal laws.[1] Indeed, Anti-Federalists cited the prospect of judicial review as a reason to reject the constitution, leading Alexander Hamilton to offer a rousing defense of judicial review in Federalist No. 78, arguing that the existence of a written constitution implied that, when a court decides a case before it, it must treat the Constitution as paramount and decline to implement ordinary statutes, for instance, that contradict that supreme law.

Indeed, even before the Constitutional Convention, several judges on the highest court in Virginia, including George Wythe, expressly embraced judicial review in the Case of the Prisoners (1782). Moreover, shortly after the Constitution was ratified, the Supreme Court declined to enforce a congressional statute purporting to require individual justices to evaluate petitions from Revolutionary veterans for pensions.[2]

Finally, the First Congress apparently believed that the Supreme Court had the authority to determine whether, for instance, state laws were constitutional, enacting the Judiciary Act of 1789. Among other things, the act empowered the Court to review state laws whose validity was challenged “on the ground of their being repugnant to the constitution, treaties or laws of the United States[.]” This, of course, is exactly the sort of review that the Supreme Court conducted in Lochner and, for that matter, Roe. If this sort of review was an example of inappropriate “judicial supremacy,” then it’s the sort of judicial supremacy endorsed by the same Congress that proposed the Bill of Rights.

In sum, just as the Christian Church pre-dated various books of the New Testament, so too did judicial review predate Marbury v. Madison. Moreover, the logic supporting the institution of judicial review, expressed for instance in Federalist No. 78, was not limited to instances in which Congress sought to compel the courts to act in a manner that exceed their authority.

Judicial Review in the Early Nineteenth Century

Clinton also seems to understate the extent of judicial review early in the nineteenth century. For instance, from 1810 to 1819, the Marshall Court invalidated statutes in four different states on the grounds that such legislation offended the Constitution’s Contracts Clause found in Article I. None of the statutes interfered with the operation of courts as such. In the famous Dartmouth College case, for instance, the Court invalidated a New Hampshire statute that coercively transformed Dartmouth from a private to a public college, because the statute altered the college’s original royal charter.

In so doing, the Court conducted the same sort of review that courts would conduct during the Lochner era. While Chief Justice John Marshall did not cite Marbury as authority for this sort of judicial review, the omission simply suggests that judicial review was “taken for granted” by this time. If, as Clinton asserts, “judicial supremacy” entails declaring a statute invalid “because the Court believes that some other agency of government has done something unconstitutional,” then the Marshall Court, which decided Marbury in 1803, embarked on such a supremacy campaign just seven years later.

Marbury Supports “Departmentalism,” Not Judicial Supremacy

I completely agree with Clinton that Marbury does not support the sort of judicial supremacy suggested by the dicta of Cooper v. Aaron or the language in Casey quoted above. (I refer to the Cooper language as dicta because the actual question before the Court was whether the governor of Arkansas could thwart local compliance with the Court’s mandate in Brown. The Court properly ruled against the governor.)

Neither Marbury nor its logic supports the notion that only judges are authorized to interpret the Constitution or that other actors (e.g., the president) must treat Supreme Court precedent as definitive when operating within their own sphere of authority. Instead, Marbury and Federalist 78 support so-called “Departmentalism,” whereby courts (the “Judicial Department”), when deciding cases before them, must decline to enforce unconstitutional statutes.

Indeed, at the Pennsylvania ratifying convention, James Wilson, later a Supreme Court Justice, argued that a president (the “Executive Department”) could decline to enforce a law he believed to be unconstitutional and that, in the same way, judges could decline to enforce unconstitutional laws. Presidents and senators owe fidelity to the Constitution, not to the Supreme Court. As James Madison put it in 1834:

As the Legislative, Executive, and Judicial departments of the United States are co-ordinate, and each equally bound to support the Constitution, it follows that each must, in the exercise of its functions, be guided by the text of the Constitution according to its own interpretation of it; and, consequently, that in the event of irreconcilable interpretations, the prevalence of the one or the other department must depend on the nature of the case, as receiving its final decision from one or the other.

And, of course, in his first inaugural address, Lincoln expressly reiterated what he had argued in his debates with Stephen Douglas—namely, that while the Dred Scott decision was binding on the individual parties to the case, the political branches could ignore its rationale. Thus a president, for instance, can veto or decline to enforce legislation on constitutional grounds, even if he knows courts would uphold it.

Willful Judging by the Warren and Burger Courts

I also agree with Clinton’s assertion that the Warren and Burger Courts abused the power of judicial review, striking down various state and federal laws or judicial practices that were perfectly constitutional. Examples include Roe, Miranda v. Arizona, and Mapp v. Ohio, the latter of which declared for the first time that reliable evidence obtained in violation of the Fourth Amendment must be kept from a criminal jury, even if it means releasing a murderer who may kill again.

Other examples include the Burger Court’s transmogrification of the Eighth Amendment from a ban on cruel and unusual modes of punishment to a blanket license empowering judges to determine what factors the sentencer must consider when deciding whether to impose the death penalty upon a defendant duly convicted of murder. Still, I would not attribute these errors to judicial supremacy but instead to willful judging.

Protection for Economic Liberty Did Not Reflect “Social Darwinism”

One final note is not about the nature of judicial review as such but instead about Clinton’s account of the Lochner era, particularly his claims that Lochner-era judges were motivated by Social Darwinism and struck down legislation that was designed to protect the weak from the strong. Both assertions are controversial to say the least.

Lochner-era judges found protection for liberty of occupation, liberty of contract, and rights of property in the Due Process Clause of the Fourteenth Amendment, ratified in 1868. In so doing they embraced the conception of liberty propounded by Abraham Lincoln during the Civil War: namely, the ability to work at one’s chosen occupation and retain the fruits of one’s labors. Still, despite emancipation, Southern states had continued to deprive African Americans of various economic liberties via the so-called “black codes.” Congress sought to preempt these codes via the Civil Rights Act of 1866, ensuring African Americans the same rights of contract and occupational liberty as whites. The act, however, exceeded any apparent power of Congress, which then proposed the Fourteenth Amendment. Section 5 of the amendment authorized Congress to enforce the amendment’s provisions—including the Equal Protection Clause, the Due Process Clause, and the Privileges or Immunities Clause—against the states. It should be no surprise, then, that the Supreme Court would ultimately find protection for economic liberties in the Fourteenth Amendment.

Nor am I aware of any data suggesting that most laws voided during the Lochner era protected the weak against the strong. Lochner itself, for instance, voided a law that likely disadvantaged labor-intensive small bakeries against larger, capital-intensive establishments. At the same time, the Lochner-era Court upheld certain forms of legislation, such as antitrust laws, that prevented large firms from cartelizing and thereby destroying wealth and harming consumers. Regardless of what one thinks of Lochner and its progeny as a matter of constitutional law, it seems difficult to square most Lochner-era decisions with the philosophy of Social Darwinism.

Notes

[1] See Sai Prakash and John Yoo, The Origins of Judicial Review, 70 University of Chicago Law Review 887.

[2] See Hayburn’s Case (1792).

My contention that Chief Justice John Marshall’s misquote of Article III, Section 2, paragraph 2 of the Constitution in Marbury v. Madison[1] was intentional will always be a matter of opinion, but I believe the evidence is persuasive. The reader should go to my original article or to the original sources and read the texts for himself.

We have here a man who is Chief Justice of the United States but does not copy correctly a short and simple paragraph from the document upon which he is basing his entire argument. Then it turns out that his rewritten version rather than the original version reads exactly the way he needs it to read to sustain the argument he wanted to make. And we are now supposed to believe that this was just an innocent mistake. Perhaps I have watched too many Perry Mason programs on television, but I will always believe this was an intentional sleight of hand rather than an inadvertent or irrelevant error.

Why Marshall Did It

This contention is based on three closely related premises. The first is the extreme political necessity of the situation in which Marshall found himself. The second consists of certain character traits exhibited by Marshall on several occasions that show him capable of ethically questionable behavior. The third is the ease with which he could have quoted the passage correctly had he desired to do so.

Space limitations prohibit extensive treatment here of Marshall’s difficult political predicament. This was covered in my original article and in my response to critics, and it also may be found in any good history of the period. Suffice it to say that his failure to deliver Marbury’s commission in his last days as John Adams’s secretary of state early in 1801 precipitated a severe political crisis for Marshall, the results of which could have ranged from extreme public embarrassment for him and the Supreme Court to the complete clearing of the Supreme bench by impeachment by the Jeffersonians in Congress.[2] This Marshall understandably wanted to avoid, and if he could embarrass and outfox his distant cousin and nemesis President Thomas Jefferson and strike a coup d’etat for the Supreme Court at the same time, so much the better. That he succeeded in this task is beyond question, but how he did it is another matter.

Then there is the matter of certain ethical ambiguities in Marshall’s early career on the bench. He served as both secretary of state and Chief Justice at the same time, continuing in the former after he had been sworn in as the latter until the end of Adams’s term. The Marbury case never would have arisen had he, as secretary of state, not failed to deliver Marbury’s commission, and that tells me Marshall should have recused himself from the case. He had absolutely no business participating in a case his own negligence had caused. Yet he did so.

There is also his biography of Washington, which he undertook as a money-making venture shortly after becoming Chief Justice. Speaking of the first volume, Beveridge says that “the volume is poorly done; parts are inaccurate. … Marshall admits that every event of the Revolutionary War has been told by others … and that he had copied these authors, sometimes using their very language.”[3] Beveridge also observes, “It would seem that for a long time Marshall tried to conceal the fact that he was the author; and, when the first volume was about to be issued, strenuously objected to the use of his name on the title-page.”[4] Thus, parts of the book were inaccurate; in some instances he had copied the words of other authors verbatim, and he wanted the money from the venture but not his name on the title page. That is understandable.

The Aaron Burr treason trial in 1807 was another controversial episode. Of its many parts, the most relevant here is what is called the Wickham dinner party in Richmond, Virginia. Marshall was presiding over the case while riding circuit and had released Burr on bail. Wickham was an old friend and Burr’s chief counsel; during the trial he had a dinner party at his home to which he invited both Marshall and Burr, and they both attended. There is disagreement about whether Marshall knew beforehand that Burr had been invited; Beveridge says that it was “most improbable that he knew that Burr was to be at the Wickham dinner,”[5] but Thayer says that Marshall “accepted the invitation before he knew Burr was to be of the company” but then learned that Burr was going to be there and attended anyway.[6] Thayer continues that Marshall sat “at the opposite end of the table from Burr, had no communication with him, and went away early.”[7]

Regarding Burr, I cannot fully determine what Marshall knew and when he knew it, but I can state that he knew, when he accepted his invitation, that Wickham was Burr’s chief counsel. They may have been old friends who had known one another for years, but it was highly improper for Marshall to attend such a function in Wickham’s home at that time. And, if Marshall did know that Burr would be present, his breach of ethics was even more severe. Thayer says Marshall “was sometimes curiously regardless of conventions.”[8]

Can’t Deny the Misquote

I do not believe that Marshall’s misquote of Article III, Section 2, paragraph 2 is accidental. It is not that the source was obscure. It is not that the relevant passage was long or convoluted. It is not that he had little time to prepare the opinion. To the contrary, the source was readily available, it is short in length, and he had plenty of time (a year or so, since Congress had given the Court a 14-month vacation) to prepare the opinion. Moreover, if he could quote the Constitution correctly in several other places, he could have quoted the Constitution correctly in this instance had he wanted to.

Marshall’s defenders cannot deny the misquote, but they deny its relevance. I maintain that it is relevant because it changes the meaning of the sentence to the way Marshall needed it to read to accomplish his objective of finding an option in addition to the unacceptable options of denying Marbury’s petition for want of jurisdiction or issuing the writ of mandamus to Madison. The most effective way to do that was to find Section 13 unconstitutional by removing the exceptions clause from Article III.

If this is not true, why did Marshall not quote it correctly? How hard would it have been to get it right? Was he simply careless and sloppy? I think not. Beveridge says that “Marshall determined to annul Section 13 of the … Judiciary Act of 1789.”[9] To do so, he rewrote the relevant part of the Constitution to establish the pretext that Section 13 violated the Constitution. It is really quite simple, his defenders to the contrary notwithstanding. Necessity was the mother of invention once again. Marshall revealed his intentions two paragraphs prior to the misquote:

The act to establish the judicial courts of the United States authorizes the supreme court, “to issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed or persons holding office, under the authority of the United States.” The secretary of state, being a person holding an office under the authority of the United States, is precisely within the letter of this description; and if this court is not authorized to issue a writ of mandamus to such an officer, it must be because the law is unconstitutional.

Res ipsa loquitur: The thing speaks for itself. Marshall’s conclusion about Section 13 is itself ridiculous, because there is no compelling reason the Constitution would not have allowed Congress to grant the Supreme Court the mandamus power under its original jurisdiction, and there is a very compelling reason for it to do so: The Court might need it. The mandamus power is one of the most basic powers any court has to do its work and, apart from the volatile political ramifications of the case, it was absurd of Marshall to strip that power from the Supreme Court. Indeed, the mandamus power could be said to be an inherent power of any court under either its original or appellate jurisdiction.

Furthermore, the Framers proved themselves capable of prohibiting that which they wished to prohibit. For example, they prohibited tariffs on exports, bills of attainder, ex post facto laws, and religious tests for office, but it would have been silly for them to deny the mandamus power to the Supreme Court under its original jurisdiction, and they did not do so. In addition, it seems to me that Section 13 could have been sustained by means of the Necessary and Proper Clause had that been congruent with Marshall’s purpose, but we know, of course, that it was not.

A Machiavellian Hoax

In my two earlier articles on this subject I cite several other scholars who take the same position. The noted historian Samuel Eliot Morison says, “By a legal twist, which the Jeffersonians considered mere chicanery, the Chief Justice managed to deliver an opinion which has become classic.”[10] Another is from Beveridge: “It was not, then, Marshall’s declaring an act of Congress to be unconstitutional that was innovating or revolutionary. The extraordinary thing was the pretext he devised for rendering that opinion—a pretext which, it cannot be too often recalled, had been unheard of and unsuspected hitherto.”[11] Beveridge continues: “Nothing but the emergency compelling the insistence, at this particular time, that the Supreme Court has such a power, can fully and satisfactorily explain the action of Marshall in holding this section [13] void.”[12] Max Lerner puts it this way:

By a maneuver he managed to administer a public spanking to the administration, assert judicial supremacy, yet leave Jefferson helpless to strike back. … It mattered little to Marshall that if his conclusion was valid and the Court had no jurisdiction, everything before it was superfluous—a vast obiter dictum that was sheer political maneuver. It mattered little to him that none of the opposing counsel had argued that the section of the Judiciary Act was unconstitutional, and that in order to declare it so he had to wrench it beyond all principles of statutory interpretation.[13]

“Legal twist,” “pretext,” “emergency,” “maneuver.” Thus, in derivation but not influence one may conclude that Marbury v. Madison is a gigantic hoax—carefully, intentionally, and shrewdly planned and executed by a Machiavellian jurist of the first order.

Notes

[1] Winfield H. Rose, “Marbury v. Madison: How John Marshall Changed History by Misquoting the Constitution,” PS: Political Science and Politics 36 (April 2003): 209–14.

[2] See my original article cited in footnote #1 above and my reply to critics “Further Thoughts on Marbury v. Madison,” PS: Political Science and Politics 37 (July 2004): 391–95.

[3] Albert J. Beveridge, The Life of John Marshall, vol. III. (Boston and New York: Houghton Mifflin Company, 1919, 242–43 (emphasis added).

[4] Ibid., 228.

[5] Ibid., 396.

[6] James Bradley Thayer, “John Marshall,” part I in James Bradley Thayer, Oliver Wendell Holmes, and Felix Frankfurter on John Marshall (Chicago and London: Phoenix Books, University of Chicago Press, 1967), 64.

[7] Ibid., 65.

[8] Ibid., 62.

[9] Beveridge, The Life of John Marshall, 132.

[10] Samuel Eliot Morison, The Oxford History of the American People (New York: Oxford University Press, 1965), 363 (emphasis added).

[11] Beveridge, The Life of John Marshall, 133 (emphasis added).

[12] Ibid. (emphasis added).

[13] Max Lerner, “John Marshall and the Campaign of History,” Columbia Law Review 39 (1939): 407 (emphases added).

Marbury v. Madison is the case in which the Supreme Court first enunciated and exercised the doctrine of judicial review, the notion that judges are constitutionally empowered–required, even–not to apply laws or actions (when they come before them in a legal case) that violate the Constitution's plain language. It is not, however, the forefather of modern judicial activism, although many law professors would like to pretend otherwise.

Marbury does not provide precedent for rulings based principally on policy rather than legality, for those based on the personal views of judges rather than the fixed dictates of law, or for those based on what judges think the law ought to be rather than on what the law actually is.

A Familiar Voice Supports Marshall

Marbury has long been recognized as a seminal case, being the Supreme Court's inaugural exercise of judicial review. But upon the opinion's release in 1803, its assertion that the Court possesses this power was not particularly controversial. In his 1922 classic The Supreme Court in United States History, Charles Warren writes that at the time of Marbury's issuance, "practically the only published attack on that portion of [the great Chief Justice John] Marshall’s opinion which asserted the power and the duty of the Court to pass upon the validity of the Act of Congress involved was contained in a series of letters from a Virginian, signed ‘An Unlearned Layman.'”[1] Another writer in that same 1803 newspaper, who clearly knew his Federalist Papers (and particularly Federalist 78), soon after replied to the layman:

It has always appeared to me a matter of astonishment that a power, should be denied, which is so necessary and so clearly defined, as that of the Judges of the United States to declare a law unconstitutional, or in other words, to pronounce the Constitution of superior obligation to the law. … [I]f a law conflict[s] with the Constitution, the Judges are bound to declare which is paramount. The Judges here arrogate no power. It is not they who speak–it is the Constitution, or rather, the people.[2]

Alexander Hamilton, the author of Federalist 78 himself, wrote, "Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power." Hamilton continues, "If it be said that the legislative body are themselves the constitutional judges of their own powers and that the construction they put upon them is conclusive upon the other departments it may be answered that this cannot be the natural presumption where it is not to be collected from any particular provision in the Constitution." He concludes, "The interpretation of the laws is the proper and peculiar province of the courts" and it is their duty "to declare all acts contrary to the manifest tenor [obvious meaning] of the Constitution void.”[3]

Not a Power Grab

Although Marbury provides clear precedent for judicial review along the lines that Hamilton envisioned, it is only in recent decades that law professors have attempted to claim that the case provides precedent for "legal realism"–the notion that the law isn't fixed, that judges should read and apply legal texts in the manner that they think society requires, that judges must infuse the Constitution and laws with meaning and then declare that this meaning exudes from the text itself. Legal realism is traceable back to Justice Oliver Wendell Holmes and is actually traceable as far back as Chief Justice Roger Taney, Marshall's successor and the author of Dred Scott v. Sandford (1857). Dred Scott was the Court's first major foray into policymaking, but Taney applied a much milder form of the legal realist approach as early as 1837 in the case of Charles River Bridge v. Warren Bridge, doing so over the powerful dissent of Marshall's right-hand man, Justice Joseph Story. But Marbury is not precedent for legal realism. It was not a power grab, nor an attempt on the part of its esteemed author to provide a revolutionary departure from previously held understandings about the proper role of the courts.

Marshall's argument in Marbury in support of judicial review is persuasive, and it is rooted both in the constitutional text and in a solid understanding of the nature of a written (and thereby limited) constitution. Marshall writes:

It is declared that "no tax or duty shall be laid on articles exported from any State." Suppose a duty on the export of cotton, of tobacco, or of flour, and a suit instituted to recover it. Ought judgment to be rendered in such a case? Ought the judges to close their eyes on the Constitution, and only see the law?

The Constitution declares that "no bill of attainder or ex post facto law shall be passed."

If, however, such a bill should be passed and a person should be prosecuted under it, must the Court condemn to death those victims whom the Constitution endeavours to preserve?

In other words, in such instances of a law's clear violation of the Constitution, something must give–either the Constitution or the law. Under a written constitution, it must seemingly be the latter. And if it's the latter, a judge effectively has no choice: He or she must strike down (i.e., refuse to apply) the offending law. Those who question the legitimacy of judicial review have yet to provide an effective refutation of this argument.

Rose Misquotes Marshall

The argument is an elaboration on what Marshall means elsewhere in Marbury when he proclaims that the "theory" asserting that the judiciary may void clearly unconstitutional laws is "essentially attached to a written constitution." This is beautifully said. And it should remind us that a theory–and a case–that are essentially attached to a written constitution cannot rightly be said to provide precedent for legal-realist rulings that are largely detached from a written constitution.

Marshall's argument on behalf of judicial review is effectively a restatement of Hamilton's argument in Federalist 78, which in turn is a thorough defense of the support for judicial review communicated (with little opposition) at the Constitutional Convention by James Madison, Elbridge Gerry, Rufus King, James Wilson, Luther Martin, George Mason, and Gouverneur Morris–particularly during the Council of Revision debate. The consensus expressed in all three places–at the Convention, in Federalist 78, and in Marbury–was that judicial review (not yet named as such) both would and should be exercised, although always with great deference to representative legislatures and never as a means to promote particular or general policy goals.

The principles of constitutional republicanism were thought to require this, for if judges do not exercise judicial review to strike down clearly unconstitutional laws, then (by applying those laws) they aid legislatures in their violations of constitutional forms, while if judges do exercise judicial review to promote their own policy goals, then they both undermine constitutional forms (which call for them to adjudicate, not legislate) and deprive the people of their collective right to govern themselves.

Yet many law professors continually miss that very point. Some even impute to Marshall a clever and willful disingenuousness, which they then use to support their own claims that judges are entitled to issue binding policy-based rulings. A prime example of this is an article by law professor Winfield H. Rose entitled, "Marbury vs. Madison: How John Marshall Changed History by Misquoting the Constitution." Rose says that Marshall "had the nerve, the courage, to misquote the Constitution for his own purpose" and "the skill to do it in such a way that has been largely unrecognized for 200 years." He writes that through this exercise not of "lofty jurisprudence" but of "pure politics" Marshall secured for the Court "the huge power of judicial review." Alas, in attempting to support his argument, Rose misquotes Marshall–or, at the least, he misrepresents and misapplies Marshall's words.

In Marbury, the Supreme Court struck down a part of the Judiciary Act of 1789 on the grounds that, by authorizing the Court to issue writs of mandamus (directives to government officers), the act expanded the Supreme Court's original (non-appellate) jurisdiction. Marshall argued that Congress could not alter the scope of the Court's original jurisdiction, since that jurisdiction is specified by the Constitution. Rose asserts that this argument was made possible only because Marshall "simply dropped" a constitutional phrase that empowers Congress to alter the Court's jurisdiction as it sees fit. Rose says that Marshall called the phrase "mere surplusage … entirely without meaning."

However, Rose mistakes Marshall's thoughts about the arguments made by Marbury's counsel for Marshall's thoughts about the Constitution itself. Marshall does not conclude, as Rose asserts, that a part of the Constitution is meaningless "surplusage." Rather, Marshall cites the constitutional construction proposed by Marbury's lawyer and concludes that "The subsequent part of the section is mere surplusage, is entirely without meaning, if such is to be the construction" (italics added). But Rose omits these last seven words.

Rose claims that the exceptions clause "gave Congress the power to adjust the original and appellate jurisdictions of the Supreme Court." But the exceptions clause authorizes Congress to adjust only the Court's appellate jurisdiction, not its original–at least explicitly. Moreover, if the exceptions clause were to refer to both the Court's appellate and original jurisdictions, as Rose asserts, then that idea could have been stated rather succinctly, by using language such as "Congress shall specify the Court's original and appellate jurisdictions, both as to law and fact" in lieu of the entire second paragraph of Article III, Section 2–and the Founders were generally not guilty of verbosity in their writing of the constitutional text. As Marshall writes:

If the solicitude of the convention, respecting our peace with foreign powers, induced a provision that the supreme court should take original jurisdiction in cases which might be supposed to affect them; yet the clause would have proceeded no further than to provide for such cases, if no further restriction on the powers of congress had been intended. That they should have appellate jurisdiction in all other cases, with such exceptions as congress might make, is no restriction; unless the words be deemed exclusive of original jurisdiction.[4]

The Foundation for Judicial Review

Far from dropping the exceptions language from view as Rose alleges, Marshall explicitly notes it. Regardless of whether one finds Marshall's argument persuasive, it assuredly does not rest on a misquoting or ignoring of the Constitution.

More to the point, the Court's ruling in Marbury is not a policy-based ruling. It does not bring about the realization of the justices' own wills. Rather, it is a ruling based on careful reasoning about the plain language of the constitutional text–about what it means rather than about what the judges might like it to mean. To the extent that Marbury is the foundation of judicial review, it is the foundation only for judicial review of this sort.

Notes

[1] Charles Warren, The Supreme Court in U.S. History (New York: Little, Brown, and Company, 1922), 1:252.

[2] Washington Federalist, April 202227291803, reprinted in ibid. (Warren does not list the author's name, and perhaps he wrote anonymously; he says only that he responded to the "Unlearned Layman" in the same newspaper in which the Layman had written.)

[3] Federalist No. 78.

[4] Marbury v. Madison, 5 U.S. 137 (1803). Italics added.